1
Fair Work Act 2009
s.394—Unfair dismissal
Eland
v
Childrenfirst Inc T/A Childrenfirst
(U2013/16116)
VICE PRESIDENT CATANZARITI SYDNEY, 8 MAY 2014
Application for relief from unfair dismissal - no valid reason for dismissal - no opportunity to
respond - dismissal was harsh, unjust or unreasonable - parties to be heard as to remedy.
[1] On 21 November 2013, an application pursuant to s.394 of the Fair Work Act 2009
(the Act) for a remedy for unfair dismissal was lodged by Mrs Donna Eland (the Applicant).
[2] The matter was the subject of a telephone conciliation on 14 January 2014 and a
conciliation conference before Drake SDP on 3 April 2014. Neither attempt to conciliate the
matter was successful and consequently the matter was listed for hearing. At the hearing
conducted on 10 April 2014, the Applicant was represented by Mr Lawrence Brayne (Mr
Brayne) in his capacity as support person. It should be noted that Mr Brayne is neither a paid
agent nor a lawyer. Childrenfirst Inc (the Respondent) was represented by Mr Jason
Cummings, Chief Executive Officer of the Respondent.1
[3] The Applicant filed written submissions and materials in the Fair Work Commission
(the Commission) on 21 February 2014. The Respondent filed written submissions and
materials in the Commission on 17 March 2014.
[4] The applicant gave evidence on her own behalf in addition to the following witness:
Ruth Wall - Room Leader, Childrenfirst Inc
[5] The following witnesses gave evidence on behalf of the Respondent:
Belinda Jane Rushbrook - Executive Manager of Children Services, Childrenfirst Inc
Diane Mary Rawlings - Manager, Childrenfirst Inc
Kayla Marie Kirk - Trainee Childcare Worker, Childrenfirst Inc
Jason Cummings - Chief Executive Officer, Childrenfirst Inc
[2014] FWC 3055
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 3055
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Background
[6] The Applicant was initially employed by the Respondent on a part time basis on 25
March 2008. In April 2013 the Applicant commenced a full time role with the Respondent as
a child care worker.
[7] On 7 November 2013, the Respondent received a complaint from the parent of a child
who was under the Applicant’s care. The parent alleged that her child had indicated to her that
the Applicant had hit the child on the hand (the initial complaint). The Respondent
immediately suspended the Applicant with pay and undertook an investigation of the matter.
On 13 November 2013, the Respondent terminated the Applicant. The Respondent sent the
Applicant a termination letter that provided as follows:
“This letter is to inform you of our decision regarding our investigation and disciplinary
meeting of 12th November 2013 with reference to the allegation of physical abuse
relating to a child in your care at Blacktown Road Children’s Centre.
We have concluded that, due to the seriousness of this matter, and the evidence that
was collated and corroborated, that your employment with childrenfirst is no longer
tenable and it is obvious to us that you have not been able to carry out the role of child
care worker to the required standard that meets the policies, procedures, regulations
and legislation relating to childrenfirst and the early childhood sector.
Therefore, we have decided to terminate your employment with childrenfirst with two
weeks notice from the date of this latter. However, we have decided to pay you in lieu
of notice and you will no longer be required to attend you [sic] former workplace...”
[8] The Applicant maintains that she has never hit a child in her care. Thus, the Applicant
submits that she was unfairly dismissed and seeks an order that she be compensated.
Protection from unfair dismissal
[9] An order for compensation may only be issued where I am satisfied that the Applicant
was protected from unfair dismissal at the time of the dismissal. There is no dispute, and I am
satisfied, that the Applicant is protected from unfair dismissal within the meaning of s.382 of
the Act.
Was the dismissal unfair?
[10] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the
circumstances set out in s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
[2014] FWC 3055
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(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.”
Was the Applicant dismissed?
[11] A person has been unfairly dismissed if the termination of their employment comes
within the definition of “dismissed” for the purposes of Part 3-2 of the Act. On the basis of
the termination letter sent to the Applicant by the Respondent, I am satisfied that the
Applicant was dismissed within the meaning of s.386 of the Act.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[12] It was not in dispute, and I am satisfied, that the Small Business Fair Dismissal Code
was not applicable as the Respondent is not a small business employer for the purposes s.388
of the Act.
Was the dismissal a genuine redundancy?
[13] It was not in dispute, and I am satisfied, that the dismissal was not a genuine
redundancy within the meaning of s.389 of the Act.
Harsh, unjust or unreasonable
[14] Having been satisfied of each of s.385(a),(c)-(d) of the Act, I must consider whether I
am satisfied that the dismissal was harsh, unjust or unreasonable. The criteria I must take into
account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at
s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
[2014] FWC 3055
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(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[15] The ambit of the conduct that may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185
CLR 410 at 465 by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust
but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many
cases the concepts will overlap. Thus, the one termination of employment may
be unjust because the employee was not guilty of the misconduct on which the
employer acted, may be unreasonable because it was decided upon inferences
which could not reasonably have been drawn from the material before the
employer, and may be harsh in its consequences for the personal and economic
situation of the employee or because it is disproportionate to the gravity of the
misconduct in respect of which the employer acted.
[16] The Applicant submits that the dismissal was harsh, unjust or unreasonable as she
maintains that she did not engage in the alleged conduct. Additionally, the Applicant submits
that she was not afforded procedural justice, as she was not given any details of the incident in
order to prepare a response. The Applicant submits that she was denied the opportunity to
have her room leader as her support person, and instead had to rely on a relative who was
unable to provide much support. The Applicant also submits that she was unable to
effectively put her case forward to the Respondent, as she was not given an opportunity to ask
any questions during the course of the investigation, and was prevented from providing any
further input once she had answered the two questions that were put to her by the
investigators.
[17] The Respondent submits that the dismissal was not harsh, unjust or unreasonable. The
Respondent submits that it took the necessary steps to investigate the complaint, including
giving the Applicant an opportunity to respond to the allegations. The Respondent submits
that it received multiple, independent and corroborated statements that sustained the
complaint, even in light of the Applicant’s denial. The Respondent submits that the evidence
that it obtained in the course of the investigation would lead a reasonable person to the
conclusion that the Applicant had engaged in misconduct. Further, on the Respondent’s
submission, the evidence demonstrated that at the time of the dismissal the Respondent
believed that the Applicant’s continued presence posed a risk to the safety of children.
[18] I am under a duty to consider each of these criteria in reaching my conclusion.2 I will
now consider each of the criteria at s.387 of the Act separately.
[2014] FWC 3055
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Was there a valid reason for dismissal relating to the Applicant’s capacity or conduct?
[19] The Respondent must have a valid reason for the dismissal of the Applicant, although
it need not be the reason given to the Applicant at the time of the dismissal.3 The reasons
should be “sound, defensible and well founded”4 and should not be “capricious, fanciful,
spiteful or prejudiced.”5
[20] There is a distinction between capacity and conduct.6 In this matter, it was the conduct
of the employee that formed the basis of her termination. In King v Freshmore (Vic) Pty Ltd,7
a Full Bench held:
“When a reason for a termination is based on the conduct of the employee, the
Commission must, if it is an issue in the proceedings challenging the termination,
determine whether the conduct occurred. The obligation to make such a determination
flows from s.170CG(3)(a). The Commission must determine whether the alleged
conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be
determined by the Commission on the basis of the evidence in the proceedings before
it. The test is not whether the employer believed, on reasonable grounds after
sufficient enquiry, that the employee was guilty of the conduct which resulted in
termination [See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v
Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan
(1998) 84 IR 1].”8
[21] It is not the role of the Commission to “stand in the shoes of the employer and
determine whether or not the decision made by the employer was a decision that would be
made by the court.”9 However, the Commission must consider the entire factual matrix in
determining whether an employee’s termination is for a valid reason.10
[22] The investigation that took place involved Diane Rawlings (Ms Rawlings), the
manager of the childcare centre at which the Applicant worked, speaking to each of the staff
members who worked with the Applicant on 8 November 2013. Ms Rawlings gave evidence
that without making any reference to the Applicant or the complaint that had been received,
she asked each of the staff members the following two questions:
“ Have you ever seen a staff member smack a child in your room?
Have you ever seen a staff member roughly handle a child in your room?”
[23] Two staff members (Ms Bianca Bullman and Ms Ruth Wall) answered “no” to the first
question, with one staff member (Ms Kayla-Marie Kirk) responding positively and identifying
the Applicant as having smacked a child. Two staff members responded positively to the
second question (Ms Kayla-Marie Kirk and Ms Bianca Bullman), both identifying the
Applicant as having roughly handled a child, with one staff member responding “no”. Ms
Rawlings then asked both employees who had responded positively to make written
statements about what they had seen. These written statements were provided to Ms Rawlings
on 11 November 2013.
[2014] FWC 3055
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[24] On 11 November 2013 the Applicant was sent a letter informing her that a disciplinary
meeting had been arranged for the following day and that she would be given an opportunity
to state her case at the meeting. Attached to that letter were copies of the written statements
that had been produced in the course of the investigation as well as a copy of the email from
the parent that had initiated the investigation.
[25] On 12 November 2013, the Applicant attended a disciplinary meeting with Ms
Rawlings, Ms Belinda Rushbrook (Ms Rushbrook), the Applicant and the Applicant’s
mother-in-law. During the course of the meeting the Applicant refuted that she had ever
smacked a child or roughly handled a child.
[26] The evidence revealed that the decision to terminate the Applicant was made by Ms
Rushbrook and Mr Cummings following the 12 November 2013 disciplinary meeting. Mr
Cummings had not, at the stage of making the decision to terminate the Applicant, personally
looked at the written statements of the witnesses that were produced in the course of the
internal investigation. Thus, Mr Cummings relied on Ms Rushbrook’s account in coming to
his decision.
The Respondent’s Evidence
[27] Ms Rushbrook gave evidence that the material she relied upon in coming to her
decision was the evidence that had been collected from the staff members as well as the initial
parent’s complaint. While the evidence of two employees was relied upon in coming to the
decision to terminate the Applicant, only one of these employees, Ms Kayla-Marie Kirk (Ms
Kirk), was called as a witness by the Respondent during the course of the hearing. The
Respondent chose not to call the other employee who had given evidence in the internal
investigation.
[28] After initially telephoning the Respondent in relation to her complaint, the parent was
asked to send an email containing the substance of her complaint. The allegation contained in
the parent’s email was in the following terms (the identity of the parent and the child have
been redacted to protect the identity of the child):
“As I was taking [my child] home she started telling me the stories what she did at the
childcare as she do always. And she bring out her arm and hit herself and said !Donna
hit me and said stop”.
I thought she is just saying ,but than she repeated herself and said she don’t like
Donna. And probably this is the first time she said this think.”
[Errors in original]
[29] In Ms Kirk’s handwritten statement, she claimed that she had seen the Applicant treat
children roughly:
“Donna has pulled [a child’s] hair when he has pulled another child’s hair.
She has also been rough towards a few children that I feel irritate her.
[2014] FWC 3055
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If [some children] have done something wrong she would strongly pull them and tell
them to sit on the floor. Donna has also lightly smacked their hand if they have done
something wrong.”
[30] In Ms Kirk’s typewritten affidavit, she reiterated that she had witnessed the Applicant
pulling a child’s hair and added that she had seen the Applicant roughly lift children off the
ground “to the point where they would swing and almost fall over.” Ms Kirk also gave
evidence in her typewritten affidavit that she had witnessed the Applicant “slap” a child on
the hand.
[31] Given the highly emotive connotations of the term “slap,” I asked Ms Kirk during the
course of cross-examination if she could explain the difference in the terminology used in her
handwritten statement with that in the typewritten statement, and the following exchange
occurred:
“THE VICE PRESIDENT: Ms Kirk, you’ve sworn a statement as well as a handwritten
document. I want to ask you about why the handwritten document, which is what the
employer relied upon you used different language that what’s in your handwritten
statement. In your handwritten statement you say, “Donna has lightly smacked” do you
recall that?---Yes.
How did that become - changed to the words, “slap” in your statement? There is no
mention of the word “slap” in your handwritten statement, is there, Ms Kirk? ---No.
Can you tell me why there is no mention of the word “slapping the hand” in your
statement?---I said “smack”.
You didn’t use the word “slap” you said “lightly smack” in your handwritten
statement, and you described today what “lightly smack” means?---Mm.
You’ve shown me that it was a tap on the hand. That is very different to a slap, isn’t it,
Ms Kirk?---Yes.
Well, please explain to me how the word “slap” appears in your statement?---I was
trying to describe it.
Ms Kirk, you’re under oath?---Mm.
How did the word “slap” get into a typed statement for the lawyers when it is not in
the handwritten statement?---I was describing to them what it was. And I said
“slapped.”
So you agree that it’s a “slap” now, do you?---I honestly don’t know.”
[32] In the process of cross-examination, Mr Brayne asked Ms Kirk if she could provide
more detail about the incident in which she witnessed the Applicant smacking a child on the
hand. The following exchange occurred:
“MR BRAYNE: Thank you, Kayla. When you witnessed Donna lightly smacking a
child on the hand, were you in the same room as she was?---Yes.
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And in what context did she hit the person on the hand - hit the child on the hand?
What was happening at the time?---I can’t remember.
You can’t remember - you can remember it happening?---Mm.
But you can’t remember what was happening at the time?---That’s right.
Okay. Now, Donna has told me the ways that she disciplines children and she says that
she - and in her statement she said that she never hits children. She was asked if she’d
ever hit a child and she said, “No.” And what she’s informed me that the procedure
that she does is that if the children is doing something wrong she’ll hold out her hands
and say, “No, stop that,” and she’ll use her hand like that, but not touch the child, and
say, “No, stop that.” Now, from your position where you saw her hit a child, could you
have seen that, maybe, or was it actually that she hit a child when you saw her - when
you say that you saw her hit a child? Could it have been that she said, “No, stop that?”
Or could it have been - or may it have been - - -
THE VICE PRESIDENT: Mr Brayne, just be careful when you get to the record -
you’re indicating - - -
MR BRAYNE: Could she had held her hand out in the stop position, like a stop sign,
and say, No, stop doing what you’re doing.” Or are you certain that she actually struck
the child?---I’m certain.”
[33] Despite her certainty about the events that she had witnessed, Ms Kirk did not report
them to anyone else in the organisation prior to the investigation. In her typewritten affidavit,
Ms Kirk explained that she had not reported the incident as the Applicant was senior to her in
the organisation. Ms Kirk asserted that she was “worried that the Applicant would find out I
had reported her behaviour, and she would get angry and turn her anger towards me. I now
realise that the Applicant’s behaviour was inappropriate and I should have notified someone
senior to me at work.”
[34] I observed during the course of proceedings that I was concerned about the culture of
an organisation that did not encourage the reporting of serious incidents. During the course of
oral evidence it was revealed that no employee had been disciplined for failing to report what
the Respondent perceived to be serious incidents in a timely manner. When put to Ms
Rawlings and Ms Rushbrook why this was the case, both witnesses responded that the
Respondent’s standard procedures required the completion of one matter (in this case, the
Applicant’s unfair dismissal proceedings) before commencing another investigation, such as
the failure to report serious incidents.
[35] Such an approach is categorically untenable. With respect to the matter at hand, the
Applicant was dismissed on 13 November 2013. Nearly six months have passed since the
Respondent formed the view that the allegations were sufficiently substantiated to warrant
dismissing the Applicant. I cannot accept that the Respondent’s resources were so consumed
in dealing with this matter that an opportunity had not arisen to deal with the failure of
employees to report these incidents. It is clear to me that the Respondent needs to undertake a
fundamental review of its existing reporting policies, including considering the culture of the
organisation, in order to ensure that all employees, including management, are aware of the
[2014] FWC 3055
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procedures for the reporting of serious incidents and develop a culture that encourages the
reporting of such incidents.
[36] The Respondent’s evidence showed that after the internal investigation had concluded,
a letter was sent to the New South Wales Ombudsman (the Ombudsman) on 18 November
2013 informing the Ombudsman of the investigation and of its outcome. On 15 January 2014
the Ombudsman responded that the incident was not reportable as there was nothing to
suggest that there was any injury or that unreasonable force was used. The Ombudsman noted
the further allegation of hair-pulling and found that it was unclear whether that allegation met
the threshold of reportable conduct and that further enquiries would have assisted in clarifying
the nature of the conduct. The Ombudsman concluded, however, that is did not require any
more information about this incident.
The Applicant’s Evidence
[37] In addition to the Applicant’s evidence denying that she had ever handled a child
roughly or hit a child, Ms Ruth Wall, room-leader in the Applicant’s room at the children’s
centre, gave evidence that she had never seen the Applicant behave inappropriately toward a
child, and instead had observed “Donna to be a caring, attentive, gentle and sensitive to the
individual needs of the children in her care.”
Conclusion
[38] During the course of evidence, it was revealed that there was some confusion about
the Respondent’s decision making process. While the Respondent’s case outline submitted
that its investigation had led to the conclusion that the Applicant had struck the child who was
the subject of the parental complaint that initiated the investigation, Ms Rushbrook confirmed
in oral evidence that while the parent’s complaint initiated the investigation, the incident
referred to by the parent could not be corroborated. To put it another way, the Applicant was
not dismissed on the basis of the parent’s complaint as that complaint was not substantiated.
Instead, the incident referred to in the Respondent’s termination letter was that witnessed by
Ms Kirk, and this was the incident relied upon in terminating the Applicant. There were not,
as was submitted by the Respondent, numerous statements of corroboration to either the
initial complaint or to any of the allegations made against the Applicant.
[39] On the balance of probabilities, I prefer the evidence of the Applicant over the
evidence of Ms Kirk. I am concerned about the inconsistency between Ms Kirk’s handwritten
statement and her typed affidavit in relation to a crucial issue. While the terms “lightly
smacked” and “slapped” are similar, each carries significantly different connotations. Further,
I am concerned about Ms Kirks’ inability to recall any further details at all in relation to the
incident that she witnessed upon being pressed by Mr Brayne. Even having regard to the high
level of stress that inevitably falls upon a witness giving oral evidence, particularly younger
witnesses, Ms Kirk’s temperament on the stand, her inability to recall important details and
the inconsistencies in her statement, I have formed the view that Ms Kirk is not a reliable
witness.
[40] In relation to the evidence of the parent’s complaint, I am not convinced that this
uncorroborated evidence is sufficient to form a basis to conclude that the Applicant did hit a
child. While the parent’s complaint was undoubtedly a very serious allegation, the incident
was not witnessed by any other person. Having found that the evidence of Ms Kirk is not
[2014] FWC 3055
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reliable, I also have reservations about accepting uncorroborated evidence in the form of
hearsay from a two year old child.
[41] On the basis of the evidence before me, I am unable to find that the Applicant engaged
in the conduct that she was alleged to have engaged in, and therefore do not find that there
was a valid reason for her dismissal.
Was the Applicant notified of the reason for dismissal?
[42] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made,11 in explicit terms12 and in plain and clear
terms.13 In Crozier v Palazzo Corporation Pty Ltd14 a Full Bench of the Australian Industrial
Relations Commission dealing with similar provision of the Workplace Relations Act 1996
stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to terminate
their employment in order to provide them with an opportunity to respond to the
reason identified. Section 170(3)(b) and (c) would have very little (if any) practical
effect if it was sufficient to notify employees and give them an opportunity to respond
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.”15
[43] The Applicant was notified of the reason for her dismissal insofar as it related to the
allegation made in the parent’s initial complaint. While the Applicant was provided with the
written statements of the other employees, and thus was aware of the other allegations that
had been made against her, she was not told that these allegations were to form the basis of
her dismissal. Indeed, it was not until the day of the hearing that the Applicant understood that
it was these allegations, and not the allegations made by the parent in the initial complaint,
that formed the basis of her dismissal. This prevented the Applicant from putting her case as
effectively as she otherwise might have.
Was the Applicant given an opportunity to respond?
[44] An employee protected from unfair dismissal must be provided with an opportunity to
respond to any reason for dismissal relating to the conduct or capacity of the person. This
criterion is to be applied in a common sense way to ensure the employee is treated fairly and
should not be burdened with formality.16
[45] The Applicant gave evidence that during the course of the 12 November 2013
disciplinary meeting, she was cut short and did not have an opportunity to say what she
wanted to say. As this evidence is not inconsistent with the evidence of either Ms Rawlings or
Ms Rushbrook who were in attendance at the meeting, I accept that the Applicant was not
given a reasonable opportunity to respond to the allegations that were put to her. The limited
opportunity that the Applicant was given to respond was exacerbated by the fact that the
Applicant was not aware of the basis upon which the Respondent was seeking to terminate
her.
[46] It should be noted that the Applicant was made aware of an “appeal process” whereby
the Respondent’s Chief Executive Officer (Mr Cummings) would review the decision to
[2014] FWC 3055
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terminate the Applicant. The Applicant was given seven days from the date of her termination
to commence the appeal process. The Applicant wrote to Mr Cummings on 17 November
2013 to inform him of her intention to appeal the decision to terminate her, and that she was
in the process of seeking legal advice. On 21 November 2013, the Applicant filed this
application in the Commission without waiting for the internal appeal process to conclude.
When asked in cross-examination why she did not wait for the internal appeal process to
conclude before lodging her application in the Commission, the Applicant responded that she
was aware of the limited time-frame in which an unfair dismissal application may be lodged
and did not want to miss the opportunity for her case to be heard.
[47] There are significant issues with the appeal process as put to the Applicant. On his
own evidence, Mr Cummings made the decision to terminate the Applicant in conjunction
with Ms Rushbrook. However, Mr Cummings was also the person who would be determining
the Applicant’s internal appeal of that decision. It is clear that any appeal process that
involves Caesar judging Caesar cannot withstand even the most cursory scrutiny. Such an
appeal process is fundamentally flawed and in no way amounts to an opportunity to respond.
Was the Applicant unreasonably refused a support person?
[48] The Applicant contends that the Applicant unreasonably refused to allow her to have
her room leader act in the capacity of a support person in assisting with the discussions
relating to dismissal. However, given that the Applicant’s room leader (Ms Ruth Wall) was to
be questioned as part of the Respondent’s internal investigation, I do not find that this was an
unreasonable refusal of a support person. Further, the Applicant was not refused the
opportunity to have her mother-in-law present during the disciplinary meeting. There is
nothing on the evidence to suggest that the Applicant requested an adjournment to have an
alternative support person present, or was refused any other support person with the exception
of her room leader. Whilst I accept that it may have been distressing for the Applicant to be
denied having her room leader act as her support person, I do not find that this was an
unreasonable refusal on the Respondent’s part.
Warnings regarding unsatisfactory performance
[49] As the Applicant was not terminated on the basis of unsatisfactory performance, this is
not a relevant consideration.
Size of employer’s enterprise and human resource expertise
[50] The Respondent is a large organisation with over 100 employees. I find that the
Respondent’s size was not a relevant factor in this matter. While the Respondent does not
seem to have any dedicated human resource management specialists or expertise, I am not of
the view that this impacted the procedures that were followed in effecting the dismissal.
Conclusion
[51] Having considered each of the matters specified in s.387 of the Act, I am satisfied that
the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find that the
Applicant’s dismissal was unfair.
[2014] FWC 3055
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[52] The parties have elected to deal with issues of remedy separately from the merits of
the matter. Having found that the Applicant’s dismissal was unfair, I will direct the parties to
make submissions on remedy. These directions will be issued with this decision.
VICE PRESIDENT
Appearances:
L Brayne for the Applicant.
J Cummings for the Respondent.
Hearing details:
2014.
Sydney:
April 10.
Printed by authority of the Commonwealth Government Printer
Price code C, PR550418
1 A dispute arose in this matter in relation to the Respondent’s right to be represented by an employee of a purported
association of employers. See Eland v Childrenfirst Inc T/A Childrenfirst [2014] FWC 2178 and Eland v Childrenfirst Inc
T/A Childrenfirst [2014] FWC 3051.
2 Sayer v Melsteel [2011] FWAFB 7498.
3 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
4 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
5 Ibid.
6 Annetta v Ansett Australia (2000) 98 IR 233; Print S6824.
7 King v Freshmore (Vic) Pty Ltd (2000) Print S4213.
8 Ibid, [23].
9 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
10 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
11 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
12 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
13 Previsic v Australian Quarantine Inspection Services Print Q3730.
14 (2000) 98 IR 137.
15 Ibid at 151.
THE FAIR WORK A ISSION THE SEAA
[2014] FWC 3055
13
16 RMIT v Asher (2010) 194 IR 1, 14-15.
